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SCOW declines to clarify test for determining whether mentally ill person is a “proper subject for treatment”

Waukesha County v. J.W.J., 2017 WI 57, 6/8/2017, affirming an unpublished court of appeals decision, 370 Wis. 2d 262, 881 N.W.2d 359; case activity

In Fond du Lac County v. Helen E.F., which involved a woman with Alzheimer’s disease, SCOW held that a person is a “proper subject for treatment” under §51.20(1) if she can be “rehabilitated.” It then set forth a test for determining whether a mentally ill person has “rehabilitative potential.” In this case, J.W.J. argued that Helen E.F.’s framework should be modified because it does not account for the characteristics of mental illnesses other than Alzheimer’s, such as the one he has–paranoid schizophrenia.

Here is Helen E.F.’s test:

If treatment will maximize the individual functioning and maintenance of the subject, but not help in controlling or improving their disorder, then the subject individual does not have rehabilitative potential, and is not a proper subject for treatment. However, if treatment will go beyond controlling activity and will go to controlling the disorder and its symptoms, then the subject individual has rehabilitative potential, and is a proper subject for treatment. Helen E.F. ¶36.

J.W.J. says the test above is flawed for the following reasons:

  • When evaluating a patient with paranoid schizophrenia, it is difficult to decide whether a treatment is controlling “behaviors” as opposed to “symptoms.”
  • Helen E.F. does not say which, or how many, symptoms the treatment must be able to control before a court may deem the patient to have “rehabilitative potential.”
  • Helen E.F. is imprecise in that a physician’s word choice (as opposed to the patient’s actual condition) could be the deciding factor in concluding a person is a proper subject for treatment.
  • Helen E.F. allows courts to determine “rehabilitative potential” based on the general characteristics of a class of disorder, as opposed to focusing on the symptoms and condition of the individual patient who is the subject of the involuntary commitment petition.

In a unanimous decision, SCOW here affirms the Helen E.F. test and the extension of J.W.J.’s commitment. It holds that:

  • Helen E.F. does not require courts to distinguish between “behaviors” and “symptoms,” but rather “activities and “symptoms,” which are easy to tell apart.” Control of “activities” refers to a person’s “daily living needs and skills,” like eating dressing, hygiene, and social skills. Op. ¶31 (citing C.J. v. State, 120 Wis. 2d 355, 359-360, 354 N.W.2d 219 (Ct. App. 1984). Control of “symptoms” refers to things “endogenous” to the patient. “A symptom is an expression of a disorder at work within the patient. It is the symptom itself that is harmful. . . . ”  Op. ¶35. An example is a delusion.
  • This case does not require the court to quantify and qualify the symptoms a treatment must reach in order to show that it has “rehabilitative potential” because a doctor testified that if treatment were withdrawn, J.W.J.’s condition would decline to the point where he would require inpatient treatment. With treatment, J.W.J. can live in the community; without it he would be committed. His treatment is therefore “rehabilitative.” Op. ¶41.
  • Regardless of the words a physician uses to describe a patient’s condition, courts must still make a distinction, based on physician testimony, between treatments that improve a patient’s disorder and those that do not.  Op. ¶43.
  • Helen E.F. “explicitly requires an inquiry into each individual’s condition and potential for rehabilitation. It is, in fact, shot through with references to the individual . . .”  Op. ¶46.

Justice Abrahamson filed a concurring opinion (joined by A.W. Bradley) which points out–fairly–that this decision does not clarify the difference between treatment that controls activities versus treatment that controls symptoms. Part of the problem stems from the majority’s use of the word “symptom” to define “symptoms” and “behaviors.” Op. ¶¶33-36.

¶57 The line between controlling activity versus controlling the symptoms and the disorder——that is, whether an individual is habilitable or rehabilitable——is not any brighter or clearer to me in the instant opinion than in Helen E.F.

¶58 Unfortunately, the court maintains the confusing test it adopted in Helen E.F., failing to differentiate Chapter 51 commitments from Chapter 55 commitments.
¶59 I renew my suggestion that “it may be time for the legislature to reassess the goals and intended scope of the two chapters.”  Helen E.F., 2012 WI 50, ¶56 (Abrahamson, C.J., concurring) (citing Wis. Stat. §§ 13.83(1)(c), 13.92(2)(j)).


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